When federal Fisheries and Oceans Minister Joyce Murray last week reaffirmed the phase-out of salmon farms from the Discovery Islands, it was in opposition to the economic goals of the Laich-kwil-tach First Nations, who support salmon farming.
And when the B.C. minister of forests announced deferrals in 2021 that would prevent logging in areas with old-growth forests, the Huu-ay-aht First Nation on Vancouver Island responded by saying they would make their own decisions and develop their own plans with respect to logging in their traditional territory.
At some point, First Nations like the Huu-ay-aht and Laich-kwil-tach may be able to sue governments or regulators when decisions they make negatively affect Aboriginal economic rights – a concept that is still being defined by the courts.
“It’s all building a case towards what, I think, in a few years will be a Supreme Court ruling that affirms all this,” said Heather Exner-Pirot, co-author of a new report by the Macdonald Laurier Institute on the evolution of Aboriginal economic rights.
A succession of Supreme Court of Canada rulings in recent decades strengthened the right of First Nations to have a say in what happens in their traditional territories. The adoption of the United Nations Rights of Indigenous Peoples (UNDRIP) by the B.C. and federal governments has further strengthened the principle of consent.
It is assumed that these decisions and declarations centre on the right of First Nations to say no to things like resource extraction in their traditional territories.
But three recent court rulings – all in Alberta – suggest Aboriginal rights may work the other way as well, with First Nations having the right to say “yes” to economic development, even when it may conflict with government policies.
The Macdonald Laurier Institute recently analyzed the rulings for a report, From Shield to Sword: The Evolution of Indigenous Economic Rights. It suggests governments and regulators will need to start factoring in the economic interests of First Nations in regulatory decisions.
“Several legal decisions in the past two years have affirmed Indigenous economic rights in Canada and are building legal precedent for the right of Indigenous peoples to develop resources and participate economically in resource development, even when this conflicts with other government objectives,” the report notes.
“Many Indigenous communities have determined that it is in their interests to pursue economic benefits through resource development in the form of royalties, payments, employment, business contracts and even equity positions. They are now turning to the courts to protect those interests, and are starting to find success.”
The report’s authors examined three court rulings:
- Ermineskin Cree Nation versus Canada (Environment and Climate Change);
- AltaLink Management Ltd versus Alberta (Utilities Commission); and
- An Impact Assessment Act reference case.
In the first case, the Federal Court found the minister of Environment and Climate Change breached his duty to consult when he designated the Vista Coal mine expansion in Alberta for a federal assessment. The breach of the duty to consult arose from the fact the Ermineskin Cree Nation had negotiated an impact and benefit agreement supporting the project.
“During the process leading to the decision, the minister decided to consult and hear only from Indigenous communities seeking the designation order,” the report states. “It did not consult with the Ermineskin Cree Nation, who had negotiated an Impact Benefit Agreement (IBA) with Coalspur and wanted to see the project move forward.”
The federal minister argued that he was not obliged to consult with the Ermineskin Cree Nation in making a determination on whether the expansion should be designated for a federal environmental review.
The Federal Court disagreed, ruling: “The jurisprudence now extends the duty to consult to include economic rights and benefits closely related to and derivative from Aboriginal rights ….Thus, rights that are closely related to and derivative from Aboriginal rights are protected by the duty to consult which of course flows from the constitutionalized doctrine of the honour of the Crown.”
Exner-Pirot notes that Aboriginal rights are constitutionally guaranteed, and may therefore trump other government policies or regulations.
“An Aboriginal right is a constitutionally guaranteed right, whereas climate policy or the Impact Assessment Act is not constitutionally guaranteed legislation,” Exner-Pirot said. “So by that perspective, the Aboriginal rights to economic development should prevail.”
In the reference case, the Alberta Court of Appeal challenged the federal government’s new Impact Assessment Act. The court took issue with the fact that the federal government “gave itself the authority to veto projects that had an impact on Aboriginal and treaty rights, even when Indigenous communities themselves supported them.
“This, in the court’s view, constituted federal overreach.”
That reference case is non-binding and has been referred to the Supreme Court of Canada.
The Indian Resource Council, an intervener in the reference case, submitted the view that “the right to produce minerals, including hydrocarbons, on their lands, is as much an Aboriginal right as hunting, fishing and gathering rights and is protected by (section) 35 of the Constitution Act, 1982.”
“This opinion provides a strong defence of the right of Indigenous nations to conduct resource development, even of hydrocarbons, on their territories,” the Macdonald Laurier Institute report states. “Without a compelling reason, the federal government should not override the Aboriginal right to do so.”
The report concludes: "While the concerns of Indigenous communities opposing a development have been the focus of legal and political attention, it must now be recognized that Indigenous support for a project, based on the economic benefits and advancement the project provides, should be subject to the same constitutional deference as the traditional rights to hunt and trap."
